Re: A Question for All You Lp's Out There
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DeputyDog
Yeah, California, especially the courts, can be a little "different." (no offense)
For this purpose, I agree with the courts. Snagging a car that is unrelated to the offense is punishment. Our Constitution prevents punishment without due process. And, I suspect, that USSC rulings since 2009 will also restrict the ability of any law enforcement agency to seize a car that is not directly related to an offense. Since we cannot search it (Arizona v Gant) it is logical to presume we cannot seize it, either.
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I'm in Ohio. As far as the business doing it, Ohio law lays out requirements for signage, and a pre-agreement with a tow company, and in turn, rates for the tow/storage must be posted on the property as a warning. A sign posted saying that parking is for customers only, or even with conditions (PAYING customers only, or "anyone committing a crime is subject to tow," etc.) could make it fair game for a store to tow the vehicle. Most department stores own their parking lots, or at least lease them, giving them the same rights in the lot for the duration of the lease. Now a store IN the mall like Forever 21? They don't properly have a "parking lot" of their own and cannot do this.
We have similar signage - minus the crime admonition. But, absent a parking lot for a single store such as Walmart, parking lots tend to belong to the owner of the shopping center or mall and the individual stores have no legal authority beyond the walkway in front of the business if even that.
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As for law enforcement, I'm not up on the latest case law here, but I do know that it's generally been held reasonable to tow a car incident to an arrest if some reason can be articulated for it.
That changed in 2009 with Arizona v. Gant. There have been subsequent cases, too. And in CA we have had further cases upheld at state and the federal Circuit Court of Appeals prohibiting impounds absent a compelling community caretaking exception.
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An inventory search is still good here - to protect the interests of the subject and police. Any contraband found during inventory is fair game.
See above.
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As for being a punitive action without due process, I have to disagree with you. You could make that argument about many matters of police discretion. Is physically arresting a shoplifter to take them to jail merely punitive as well, when you could just as easily issue a cite?
No, because the law permits that discretionary authority in most instances. At least out here we have the option to cite and release, OR to take into custody. In the case of Vehicle Code violations - even those that are misdemeanors - the CVC generally prohibits a custodial arrest.
Towing the car of an arrested shoplifter would be for what purpose? If it is for PUNISHMENT, then I submit that it would be Constitutionally invalid absent a court order or judgement.
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What about towing the car of someone speeding 40 mph over the speed limit, because you believe he will continue to do so after being released?
We can't do that here. We CAN impound for reckless IF we can articulate good cause to believe the offense will continue. In other words, the community caretaking function. But, if the officer says he is going to teach the guy a lesson and yank his car and it is clear he's doing so simply because the statute says he can, then he can be subject to criminal and civil penalties.
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Police have discretion on some matters, and I think that's a good thing.
Yes, they do. But, they have to be supported by current statutes and case law.